Antiterrorism and security laws in India

India should aggressively build upon the initial steps it recently has taken to limit the use of draconian antiterrorism laws and to begin to transform its British colonial-era police and criminal justice institutions, the Committee on International Human Rights of the New York City Bar Association said in a report released today. The 135-page report analyzes human rights concerns arising from India’s antiterrorism and security laws and the ways in which some of those concerns derive from lingering, colonial-era practices and institutions.

The report also welcomes the Indian government’s decision — following the bomb blasts over the summer in Mumbai — not to enact new antiterrorism legislation but instead to focus on upgrading its intelligence and investigative capacity to prevent acts of terrorism and to hold perpetrators accountable.

“Respect for human rights when combating terrorism is a strategic imperative,” said Anil Kalhan, chair of the Committee’s India project. “As the Supreme Court of India has recognized, terrorism often is designed ‘to provoke an overreaction’ and therefore ‘thrives where human rights are violated.’ In this context, draconian laws often provide terrorists exactly the response they hope for and, in the process, plant the seeds for future violence. That is an important lesson for all countries facing the threat of terrorism.”

Background
In 2004, the government of India took an important step forward for human rights by repealing many of the provisions in the Prevention of Terrorism Act of 2002 (“POTA”), the most recent in a series of laws, some dating from the colonial era, that confer the government with sweeping power to combat terrorism and other security threats largely outside the normal rules of the criminal justice system. Despite these laws, terrorism has persisted, and few actual terrorists have successfully been prosecuted. At the same time, like similar laws in other countries, aspects of India’s antiterrorism and security laws have raised numerous human rights concerns, including:

-- Overly broad, ambiguous, and malleable definitions of terrorism;
Pre trial investigation and detention procedures which infringe upon due process, personal liberty, and limits on the length of pre trial detention;

-- The use of “special courts” and procedural rules that infringe upon judicial independence and the right to a fair trial;

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Lack of sufficient oversight of police and prosecutorial decision-making to prevent arbitrary, discriminatory, and disuniform application; and

-- Broad immunities from prosecution for government officials that obstruct victim's right to effective remedies.
Enforcement of these laws has varied widely across the country, facilitating human rights violations that include:

-- Violations of protected speech and associational activities, particularly of political opponents and journalists;

-- Prosecution of ordinary crimes as terrorism-related offences; and

-- Severe police misconduct and abuse, including torture.

Recommendations
While POTA’s partial repeal eliminated several of the law’s most troubling features, the report analyzes a number of human rights concerns that have remained, especially since POTA continues to apply retroactively to many individuals notwithstanding its formal repeal.

The report also urges India to develop mechanisms to provide for greater administrative and judicial oversight of investigative and prosecutorial decision-making, and transparency in that decision-making, to ensure nationwide uniformity and respect for fundamental rights. Mechanisms for citizens to seek redress and hold government officials accountable for abuses should be improved. As the Association also has urged the U.S. government with respect to its antiterrorism laws and policies since 2001, the Association similarly urges the Indian government to take a number of steps to cooperate more fully with UN and other international institutions responsible for monitoring India’s compliance with human rights standards.

The report also discusses the need to reform India’s police and criminal justice institutions more generally and the human rights concerns arising from the UN Security Council’s efforts to enforce Resolution 1373, which was adopted after the September 11, 2001 terrorist attacks and has played a significant role in the public debate over antiterrorism laws in India.

The New York City Bar Association
The Association’s report draws extensively from information learned during a two-week visit to India in 2005 by several of its members. The Association has previously conducted several similar projects examining the same range of issues in other countries, including Northern Ireland, Hong Kong, and Indonesia. These visits also have helped inform the Association’s extensive work examining the human rights issues arising from antiterrorism initiatives by the United States since 2001.

As with its previous human rights reports, the Association will share its report with government officials, lawyers and bar associations, and human rights advocates in India as part of its efforts to promote mutual respect for the rule of law and human rights and ongoing dialogue about antiterrorism and security laws in India, the United States, and other countries. The Association also will share its report with officials from entities including the US State Department, Congress, and the United Nations.